Colorful U.S. case of baroness, Swiss bank makes waves in international jurisdiction, student note reports

Swiss banks in Geneva. Photo by torange.biz CC BY 4.0.

Spencer K. Schneider, my eminently able teaching and research assistant, has published a short case note in a research journal, the International Journal of Procedural Law, on a Massachusetts jurisdictional case with interesting facts.

The Massachusetts Appeals Court handed a win to a Swiss heiress who claims she was suckered into a bad investment in alchemy by a fellow aristocrat, a storied Swiss bank, and American entrepreneurs. The lower court erred when it dismissed defendant Swiss bank Rothschild for want of personal jurisdiction, the American appeals court ruled in June 2019.

Mr. Schneider aptly considers: "The American approach to jurisdiction over foreign corporations via personal agency feeds the possibility of inconsistency with jurisdictional law elsewhere in the world, such as under the Brussels Convention in Europe."

The note is Spencer K. Schneider, Aristocrats’ Squabble Over Fortune Squandered on American Alchemy May Expose Swiss Bank to U.S. Jurisdiction, in Michele Angelo Lupoi, Grandes Décisions/Leading Cases, 9:2 Int'l J. Proc. L. 339, 360 (2019).

The case is Von Schönau-Riedweg v. Rothschild Bank AG, 95 Mass. App. Ct. 471, 128 N.E.3d 96 (2019) (Casetext).

Report from Quarantine Week 2: Me and the Violet Fog

Another week in quarantine.  Technically, my latter and last.  But until there's an antibody test, who can go anywhere?  Here's my self-serving report from week 2.


What I'm Reading
(besides Dr. Grillo's blog)

John O'Donohue, To Bless the Space Between Us (2008) (Amazon).  This beautiful little book with blessings for all occasions was a gift of our dear friend Sister Catherine, who missions to children on the Navajo and Zuni Reservations in New Mexico. I perused it when she gave it to us. But picking it up again now amid the present crisis, its texts (and no less its title) have a new layer of meaning. Consider these verses from the poem, "For the Interim Time":

You are in the time of the interim
Where everything seems withheld.

. . .

What is being transfigured here is your mind,
And it is difficult and slow to become new.
The more faithfully you can endure here,
The more refined your heart will become
For your arrival in the new dawn.

There are poems about travel that are especially poignant to me in present circumstances.

First Book of Samuel (BibleGateway).  My church's yearlong Bible-reading study continues telling the ancient story of Israel.  This book, which chronicles King Saul's fall and David's rise, includes David and Goliath (ch. 17) (and Samuel on the whole reminds me of the Kings TV show, not so scriptural, but a beautifully portrayed drama, with Ian McShane as the Saul character).  I should have mentioned last week that we're accompanying the reading with videos from the nonprofit animation studio, BibleProject (1 Samuel). The studio's outstanding quick-draws are a joy to watch and learn from (también disponible en español y otros idiomas).

What I'm Watching

Doctor Who s12 (2020) (season 38 overall) (BBC trailer).  Whenever there's a new doctor, you're not sure whether it's you or the actor who isn't hitting stride.  Excited as we were about the debut of Jodie Whittaker as the first female Doctor, in 2018 (eat dust, James Bond), series 11 was further complicated by the departure of storyline mastermind Stephen Moffat (still waiting on Sherlock s5, Stephen!). Whatever the reason, series 11 felt like a string of unconnected afterthoughts, despite heroic efforts by the cast to make us care.  Finally series 12 reintroduces the concept of arc, and I feel like we're back on track, story-wise.  The scripts still need work, as they condescendingly tell us rather than show us the writers' social agenda.  But looking past that, we quite enjoyed e7's devilish villains, and we're looking forward to the concluding Cyberman saga.

Chilling Adventures of Sabrina s3 (2020) (Netflix trailer).  Guilty pleasure, I admit, but this Archie Comics reimagining is too clever to resist.  Where Doctor Who lately clubs you over the head with social allegory, Sabrina catches you unawares like a Maine lobster.  If Riverdale is an artificially flavored orange pop for the brain, Sabrina is a delicate hazelnut gelato.  Amid exquisite sets, the narratives are intricate, the characters are surprisingly multilayered for a live-action comic book, and the actors perform whimsically.  Lucy Davis as Aunt Hilda Spellman walks away with best supporting actress.  We're only getting started in s3, but we're already absorbed and delighted.

Young Sheldon s3 (2019-20) (CBS promo).  Comedy break.  This show remains as strong as it premiered.  I am one of that odd contingent that doesn't like Big Bang Theory but adores Iain Armitage's young Sheldon.  That said, even I was moved by the closing scene of e16 in the Caltech cafeteria—after my wife explained it.

Late night.  All our favorites are back, reinventing themselves in this time of crisis, and, as John Oliver put it to Stephen Colbert, "committing union infractions out the wazoo" to keep us laughing.  For HBO's Last Week Tonight, Oliver just posted his third viral installment.  Production of the CBS Late Show has been a family affair in Colbert's Connecticut home; when did his kids all grow up?  His tech snafu with Daniel Radcliffe was an instant classic, and I enjoyed his gin-infused dialog with Ryan Reynolds.  We're looking forward to Tooning Out the News, premiering officially on CBS All Access on April 7.  Producing Comedy Central's "Daily Social Distancing Show" from his New York City sofa, Trevor Noah has been killing it.  His correspondents haven't missed a beat—see "What Day Is It?," Video Chat with Roy Wood Jr. and Jaboukie Young-White, and Ronnie Chieng with Andrew Yang on universal-basic-income-come-lately—and the Daily Show graphics team rallied in force this week.  Finally, a mellow highlight of the week was Monday night's musical "Homefest" on James Corden's Late Late Show (CBS).  Who needs a studio?


What I'm Eating

Garlic.  A lot of garlic.  Now's the time.  In quarantine, you don't have to worry about any close-talking strangers.  Vampires beware.  Thanks, by the way, to whoever gave us this great gift pack of Terra Delyssa organic infused olive oils, which we rediscovered in the cupboard when we feared our olive oil stock had run dry.

King cake.  And everything else in the freezer.  My culinarily gifted Louisianan wife made this for Mardi Gras, when I was in Bissau, and froze some for me.  I've been told that if we're ever allowed to return to the grocery store, I might get gumbo.  Damn you, quarantine!

Billy’s Bistro.  We’re ordering for curbside pickup this weekend.  Remember, if you can, support your local businesses!

What I'm Drinking

Peet's Major Dickason's Blend.  Peet's bestseller.  We're grinding the beans.  It gets the job done.  It's dark, which I like; my wife likes that less.  We also tried this week Community's Private Reserve Holiday Jazz, which I gave to my wife for Christmas as part of a haul of Community coffees to tide her over while I was (or would be, but am not now) in Africa.  We both love Community coffees.  But there was something off about this one's florals that I couldn't get over.  I'd give you the rest of it, but I breathed all over it, so now it's a biohazard.

McQueen and the Violet Fog (Vimeo).  This is a truly special gin, bearing the unique flavor of a 100% neutral cane spirit from Jundiaí, Brazil, which is just north and inland from São Paulo.  Among 21 botanicals, its six "signature" ingredients are basil, rosemary, fennel seed, calamansi, star anise and açai.  It's small-batch distilled from maceration and vapor infusion in a single copper pot still.  Wine Enthusiast's Kara Newman gave it a 93: "This gin is clear, with a distinctly sweet candied lemon peel fragrance. The soft palate finishes with mild violet jazzed up by white pepper and a hint of coriander. Tailor-made for an Aviation."  The name of the gin comes from a darkly quirky poem by Atticus; the last two stanzas are printed on the back of the bottle.

What I'm Wearing

This was a gift from my mom-in-law.  She gets me.

What I'm Doing to Stay Sane

That's my weight bench from high school in the 1980s, today in my garage.  It's lived with me in five states.  "Do we really need to move that?," my wife asked in Arkansas in 2011. "They have gyms in Rhode Island."  "Why, yes," I said presciently, "in case the gym closes because of a pandemic."

Happy weekend!  

Yeah, it's actually the weekend.  Like I can tell the difference....

Quarantine works. Stay home!

Art by Grace Harrington

At last check, Australia has only 28 deaths from coronavirus. A friend down under told me that on WhatsApp today, and I had to check it before I believed it. The United States topped 7,000 deaths today. There are geographic, cultural, and quantitative-relative explanations for this differential, but they cannot account for it fully without considering differences in social and legal policy responses.

And then I read this, about the 1918 flu, from my friend Dan Harrington in the March 28 Providence Journal: "Australia enacted strict quarantine measures early on in the crises. It ... was spared."

Dan's op-ed is well worth reading.  It draws on the 1918 experience to conclude, "The lessons are all too simple. If governments had adopted quarantine measures and communicated them effectively, the reduction in death would have been significant."

Observe quarantine and, to the extent possible, stay home!

Commonwealth wins two in tort: one, bad presentment; two, no duty to juvenile assaulted in contractor custody

The Commonwealth prevailed in two tort suits under the Massachusetts Tort Claims Act at the end of February.  One case, a slip-and-fall, was decided by the Massachusetts Supreme Judicial Court on the procedural ground of untimely presentment.  The other case, involving a physical assault on a juvenile with tragic consequences, was decided by the Massachusetts Appeals Court on the merits of attenuated duty and causation in civil rights liability.

Leicester Town Hall, 2006.
Photo by Pvmoutside CC BY-SA 3.0.

In the first case, "plaintiff, Katherine Drake, slipped and fell at Leicester High School while picking up her grandson during school hours. She suffered multiple injuries, including a fractured knee and wrist."  Drake mailed her presentment (notice, or demand) letter to the Town of Leicester precisely on the two-year anniversary of the accident.  The Massachusetts Tort Claims Act requires presentment within two years, and the Commonwealth moved to dismiss on grounds of untimeliness.

The Supreme Judicial Court declined to construe the statute liberally.  "Drake does not contend that her mailed letter could have arrived on that same day, nor does she contest that the office of the proper executive officer received the presentment letter ... a full two years and three days after she was injured," the court observed.  "Given our conclusion that presentment occurs upon delivery to the office of the proper executive officer," the court affirmed dismissal.

Long Island in Boston Harbor, 2008.  Photo by Doc Searles CC BY-SA 2.0.

The second case described horrific injury inflicted on a juvenile in state custody.  A "youthful offender," Williams was in Casa Isla, "a program for juvenile males located in a facility (now closed) on Long Island in Boston Harbor. Casa Isla was operated by Volunteers of America of Massachusetts, Inc. (VOA), a nonprofit entity under contract with [the Department of Youth Services (DYS)] to operate youth residential programs." (There were other problems at Casa Isla, e.g., MassLive, WBUR.)  During a flag football game, Williams was randomly attacked by a 17-year-old resident of another VOA-operated treatment program on the island, Project Rebound, who "said he wanted to get 'kicked out.'"  After the attack, Williams experienced worsening headaches and bodily pain, but initially was given only ibuprofen.  After later emergency medical intervention, Williams was diagnosed as having "suffered ... a middle cerebral artery stroke, seizures, and cerebral edema. As a result, he now has severe and permanent brain damage. Williams currently resides in a residential program and requires twenty-four hour care."

The last bridge to Long Island was demolished in 2015.
Photo by Eric Kilby CC BY-SA 2.0 (2017).

Upon suit under the Massachusetts Tort Claims Act, the courts rejected state liability upon various theories of DYS responsibility for the conduct of contractor VOA.  DYS and the Commonwealth had no direct involvement with the management of Casa Isla or Project Rebound, so had not even the predicate knowledge that might support liability on a civil rights theory.  Accordingly, the Appeals Court affirmed in rejecting theories of Eighth Amendment, supervisory, and vicarious liability.  Similarly, absent any affirmative act by state officials, the Commonwealth, conversely, remained within the protection of state sovereign immunity.

Associate Justice William J. Meade

Drake's case reinforces the importance of legal educators continuing to teach the 19th-century "mailbox rule," however much Generations Y and Z might not intuitively apprehend its logic.  Williams's case, however sorrowful the outcome, reinforces basic (no affirmative) duty doctrine in "constitutional tort."  As a policy matter, Williams's case also might raise questions about the wisdom of outsourcing juvenile custody without providing for public accountability.  Oh, and let's make a new rule: Anytime you're going to imprison people on a harbor island with a grisly history, that raises a red flag.

The cases are Drake v. Town of Leicester, No. SJC-12781 (Mass. Feb. 28, 2020) (Court Listener, Suffolk Law, Mass. Lawyers Weekly), and Baptiste v. Executive Office of Health and Human Services, No. 18-P-1353 (Mass. App. Ct. Feb. 28, 2020) (Justia).  Justice David A. Lowy wrote for a unanimous court in Drake.  Justice Meade wrote for a unanimous panel with Shin and Singh, JJ., in Baptiste.

Waiver of negligence precludes later suit by family, high court holds in nursing home, diving death cases

Image by edar from Pixabay

In two cases at the end of February, the Massachusetts Supreme Judicial Court made clear that a person's express disposal of a negligence claim can preclude a later wrongful death suit by family.  In other words, Massachusetts wrongful death claims are derivative, not independent, of a decedent's rights.

"Wrongful death" and "survival" actions are creatures of 19th-century statute in Anglo-American law, the historic common law having extinguished all causes of action upon death—for curious historical reasons that I won't explicate here.  Formally, "wrongful death" is an action by surviving family for their losses, upon the occasion of the decedent's passing.  "Survival" is an action by the estate on behalf of the decedent, as if the decedent had lived.  However, this distinction is often blurred in law, as the actions are brought together as "wrongful death" under Massachusetts statute, and is often blurred in fact, as a single person may stand as a family member and estate representative at the same time.  However the actions are characterized in court, wrongful death and survival have become so universally entrenched in Anglo-American tort law, often upon sparsely worded and rarely amended statutes, that they function in the courts very much like common law causes of action, subject to interpretation in deep bodies of case law.

Image by whitfieldink from Pixabay

In one of the February cases, Jackalyn Schrader, acting with power of attorney for her mother, Emma, signed a "voluntary and clearly labeled" commitment to arbitrate disputes upon admitting Emma to residence at the Golden Living Center-Heathwood, in Chestnut Hill, Mass., in February 2013.  After Emma died in December 2013, Schrader brought a wrongful death claim under Massachusetts statute, in federal court, alleging that nursing home negligence caused bedsores, leading to Emma's death.  Schrader sought to evade the effect of the arbitration agreement by pointing out that she had not signed it in her personal capacity, and state law vests a wrongful death claim in family.

Image by skeeze from Pixabay

In the second of the February cases, Margaret C. Doherty, as representative of the estate and the decedent's statutory beneficiaries, sued in wrongful death upon a 2014 diving accident that took the life of her son-in-law, 37-year-old Gregg C. O'Brien.  O'Brien "was a certified open-water scuba diver [and] drowned while participating in a promotional diving equipment event that was sponsored by [defendants] and held in Gloucester," Mass.  Before participating in the event, O'Brien had signed:

a release from liability which had several subsections that were set forth in all capital letters and underlined, including "effect of agreement," "assumption of risk," "full release," "covenant not to sue," "indemnity agreement," and "arbitration."  In capital letters under the subsection titled "effect of agreement," it said, "Diver gives up valuable rights, including the right to sue for injuries or death." It also told the decedent to read the agreement carefully and not to sign it "unless or until you understand." ... [T]he subsection titled "covenant not to sue" stated that the decedent agreed "not to sue ... for personal injury arising from scuba diving or its associated activities," and that the decedent's "heirs or executors may not sue."

Asserting defendants' negligence, Doherty sought to evade the effect of the release by pointing out that the statutory beneficiaries were not party to any agreement.

Associate Justice David A. Lowy

In Schrader's case, the First Circuit certified a question to the Supreme Judicial Court to determine whether a wrongful death action in Massachusetts is independent of a decedent's action, so Schrader would be free of the arbitration agreement, or bound by the decedent's action, so Schrader would be bound by the arbitration agreement, even though she signed it only on behalf of her mother.  Schrader might have understood that her theory under statute was weak, because she sought to play up the court's power to evolve wrongful death law beyond the text of statute.  The court agreed that it had considerable power to evolve wrongful death as a function of common law.  At the same time, though, the court insisted that its job begins with statutory interpretation.  Resorting to the text of Massachusetts's first-in-the-nation, 1840 wrongful death statute, and in accordance with the weight of authority in other states, the court found the derivative nature of a wrongful death claim inescapable.  Schrader must therefore seek relief under the arbitration agreement.

In Doherty's case, the Supreme Judicial Court cited its decision in Schrader and likewise concluded, affirming, that the claims on behalf of the decedent's statutory beneficiaries were derivative and not independent of the decedent's rights.  "Therefore ... the valid waivers signed by the decedent preclude the plaintiff, as [O'Brien's] 'executor or personal representative,' from bringing a lawsuit ... for the benefit of the statutory beneficiaries."

The cases are GGNSC Admin. Servs., LLC v. Schrader, No. SJC-12714 (Mass. Feb. 27, 2020) (Justia; Suffolk Law), and Doherty v. Diving Unlimited Int'l, Inc., No. SJC-12707 (Mass. Feb. 27, 2020) (Justia).  Justice David A. Lowy wrote both decisions for a unanimous court.

'Game changer,' $2.5m punitive affirmance elucidates 'gross negligence' in medmal

The Massachusetts Appeals Court in late February affirmed an award of $2.5m in punitive damages in a case of death from botched laparoscopic surgery for a hiatal hernia.  In affirming, the Court reiterated terms and circumstances that allow a jury to differentiate "gross negligence" from mere negligence in the medical context.

According to the court opinion, Laura Parsons died after laparoscopic surgery to repair her hiatal hernia resulted in surgical tacks penetrating her pericardium, the membrane surrounding the heart.  The jury laid blame squarely on defendants surgeon, nurse, and employer for tacks having been inserted in the diaphragm too close to heart tissue.  Parsons died of cardiac arrest two days after surgery, and an autopsy observed "puncture marks on the posterior aspect of the heart."

In addition to $2.6m in compensatory damages, the jury charged the surgeon with $2.5m in punitive damages for "gross negligence," the threshold for punitive damages in medical malpractice in Massachusetts.  The Appeals Court affirmed.  Mass. Lawyers Weekly called the decision a "game changer" in favor of punitive damages for medmal plaintiffs (Mar. 5, 2020, pay wall).

An issue on appeal was the jury instruction on "gross negligence."  More than negligence and less than recklessness, "gross negligence" is a familiar yet elusive norm in Anglo-American common law.  The Appeals Court in part faulted the surgeon's counsel for failing to state objection to the usual jury instruction on the standard, though the court seemed content with the instruction on its merits.  The court observed, "While drawing the line between ordinary negligence and gross negligence can be difficult, 'the distinction [between them] is well established and must be observed, lest all negligence be gradually absorbed into the classification of gross negligence [citations omitted]."

The court concluded, "The evidence as a whole permitted the jury to find that [Dr.] Ameri's use of the tacker in Parsons's surgery manifested many of the common indicia of gross negligence. See Rosario v. Vasconcellos ... ([Mass.] 1953), quoting Lynch ... [Mass. 1936] ("some of the more common indicia of gross negligence are set forth as 'deliberate inattention,' 'voluntary incurring of obvious risk,' 'impatience of reasonable restraint,' or 'persistence in a palpably negligent course of conduct over an appreciable period of time'").

The case is Parsons v. Ameri, No. 18-P-1373 (Mass. App. Ct. Feb. 26, 2020) (Justia).  Justice Massing wrote for a unanimous panel with Sacks and Hand, JJ.

Battery, IIED in play if medical staff ignore patient's 'stop,' court rules

Medical professionals may be liable for battery and intentional infliction of emotional distress for failing to heed a patient's withdrawal of consent, a Massachusetts Appeals Court reversal warned in February.

Brigham and Women's Hospital is a teaching hospital
of Harvard Medical School in Boston.
Photo by trepulu CC BY-NC-ND 2.0 (2010).

According to the appellate court opinion, evidence in the case supported the plaintiffs' disputed claim that terminally ill cancer patient Donna Zaleskas begged staff at Brigham and Women's Hospital to stop X-rays of her leg because of her physical discomfort, but that X-ray technicians proceeded anyway.  On behalf of Zaleskas, who succumbed to cancer, survivors are suing the hospital for battery and intentional infliction of emotional distress, upon the theory that Zaleskas withdrew consent.  The Superior Court awarded summary judgment to the defense, and the Appeals Court reversed and remanded.

Thirty-seven-year-old decedent Zaleskas was a personal injury and product liability attorney in New York and alumna of Boston College Law School.

A finer line than one might expect separates theories of negligence and battery in many medical malpractice cases.  When a medical professional touches or otherwise physically treats a patient without, or beyond the scope of, the patient's consent, the action can simultaneously satisfy the test for intentional battery—defendant intentionally effecting physical contact that is unwanted by the complainant—and negligence—defendant's failure to comport with the standard of care of a reasonable professional under the circumstances.  Consent is an affirmative defense to intentional torts, like assumption of risk is a defense to negligence, but scope of consent often presents a thorny question of controverted fact.  Of course, patients with the benefit of hindsight are ill inclined to suppose that they consented to physical contact that caused harm, so intentional tort claims are often rationally articulable alongside accident claims in medmal lawsuits.

In the interest of doctrinal clarity, courts often, and in some jurisdictions, upon some facts, must, channel cases into a distinct rubric for "medical malpractice" that sits under or alongside the negligence umbrella, regardless of whether the case might be characterized as intent or accident.  That's a modern trend.  Massachusetts is more permissive in preserving conventional claims in intentional torts in medmal when the facts fit the bill.  The difference can be important in different dimensions.  A defendant's insurer might deny coverage, under policy terms, for intentional torts.  At the same time, intentional torts may give a plaintiff access to greater, even punitive, damage awards.

The Appeals Court ruled Zaleskas's claim fit for hearing in the intentional tort framework.  The court wrote plainly, "We now hold that if a patient unambiguously withdraws consent after medical treatment has begun, and if it is medically feasible to discontinue treatment, continued treatment following such a withdrawal may give rise to a medical battery claim."  In the instant case, "a reasonable jury could find that saying stop or words to that effect, in the particular factual context at issue, was sufficient to withdraw consent."

The court ruled furthermore, to the plaintiffs' advantage, "that consent to have one's body touched or positioned for an X-ray is not a matter beyond the common knowledge or experience of a layperson and does not require expert medical testimony."

The case is Zaleskas v. Brigham & Women's Hosp., No. 18-P-1076 (Mass. App. Ct. Feb. 11, 2020) (Justia). Justice Henry wrote for a unanimous panel with Rubin and Wendlandt, JJ.